Keynote Address for 4th Annual National Disability Summit

Graeme Innes AM
Disability Discrimination Commissioner
Australian Human Rights Commission

Tuesday 12 March 2013

I acknowledge the traditional owners of the land on which we meet.

We need an NDIS. Just in case anyone in the room had any doubts I played that film- just one from our Twenty Years: Twenty Stories series launched to celebrate the 20th anniversary of the commencement of the Disability Discrimination Act this month. Please check them out on our website: http://humanrights.gov.au/twentystories/

So it's a given that I, and the Australian Human Rights Commission, support the NDIS.  Most people speaking here today will talk about implementation, or related topics. I want to spend the rest of my time showing you how the NDIS could be even more effective than I believe it will be. In doing this, I have a problem. It all relates to timing.

I want to talk about how the NDIS could be improved today. The Parliamentary Committee which has just spent the last three months hearing from Australians on the NDIS Bill tables its report tomorrow. Sadly, my Tardis is out of action. So I have to talk without knowing what's in that report.

The Convention on the Rights of People with Disability requires government, at all levels, to closely consult with, and actively involve, people with disability through their representative organisations. I congratulate the Government and the Parliament on the extent of consultation undertaken in the development of the Bill and of the NDIS. The development of the Scheme is a clear indication that government is actively working toward involving people with disability in decisions that affect us. As just one example of that, let's take early intervention programmes. Originally not included as part of the NDIS the government has listened to the views of people with disability, and changed the scheme to include them.

The Commission is pleased that the Scheme continues to have bi-partisan support.  The Commission recognises the cooperation between State and Federal governments, and is pleased to note the NSW and federal government financial agreement regarding the scheme. The Commission is hopeful that other states will also support the Scheme by reaching similar agreements.

Let's start with the issue of employment of people with disability within the National Disability Insurance Agency. Many of you would be aware of my views on the shameful record of employment of people with disability by the Commonwealth Public Service- more than halving in the last 15 years, and just last year dropping below 3%.

The NDIS should be nothing short of best practise when it comes to this issue. I therefore welcome the initiative in section 147 of the Bill requiring that the composition of the 13 member NDIS Advisory Council include at least 4 people (approximately 25 per cent) with disability (with relevant skills, experience or knowledge), 2 carers (with relevant skills, experience or knowledge), and at least one member with skills, experience or knowledge in the supply or provision of equipment or services to people with disability. This initiative will provide an opportunity for the Agency to take a lead in the area of employment of people with disability.

But I would go further. I also welcome the 'expression of interest' process aimed at recruiting people with disability into the Agency workforce. Many people with disability sent in these expressions, which I understand are being currently considered.

However, I am disappointed that the Bill makes no reference to the employment of people with disability among the general staff of the Agency. A similar approach to that of the Advisory Council should be adopted for the employment of the general staff of the Agency. I encourage the government to include a requirement that at least 25 per cent of the general staff of the Agency be people with disability. This would begin to address the reduction in the employment levels of people with disability in the Australian Public Service. Surely lived experience of disability ought to be a significant selection criteria for employment in the NDIS.

I am further concerned at the focus on allied health professionals, and the holding of degrees in this area, as a requirement for employment. In my view this will erect an unnecessary and indirectly discriminatory barrier to the employment of people with disability.

I am also concerned by the requirement for the holding of driver’s licences for many advertised positions. I understand that - after some protests - this requirement has been removed.

Independent review mechanism and complaints process

The Agency governance arrangements include effective mechanisms for review of NDIS funding and eligibility decisions, including independent merits review. I would have preferred a specialist tribunal such as the Veterans Review Board, or the Social Security Tribunal. But the function is to be carried out by the Administrative Appeals Tribunal.

The Bill provides that the Agency may provide financial support to participants in such reviews. But the Bill does not permit or require the Agency to fund legal assistance in relation to review of decisions. It is essential to ensure the presence of effective mechanisms to address traditional power-imbalances in review processes. I support provision of paid advocacy support, on a sessional basis, for participants making applications to the AAT. It would provide access to an advocate who understands the NDIS, as well as the prospects of success of a particular request for review. This would be similar to the approach adopted in the Veterans Review Board.

Complaints and resolution process

The Bill does not currently include a complaints process, but provides for the development of NDIS rules by the Minister.  This includes rules in relation to the process for handling complaints involving registered providers of supports.   I am aware that such a process is being developed.  However, the Bill makes no provision for complaints about the conduct of Agency staff, persons made available to the Agency from other agencies, or other jurisdictions, or consultants engaged to assist in the performance of Agency functions.

Access to a nationally consistent and independent complaint process for participants is essential, and needs to be developed quickly.

Procurement

There are clear benefits in taking measures to ensure that accessibility features are built into universally designed goods, services, equipment and facilities, instead of people with disability needing to be served by specialised, segmented and thus inevitably less competitive and more expensive markets. There is a direct efficiency reason for the Agency to insist on universal design to the greatest extent possible in its procurement decisions, both for the organisation itself, and for the supports it is funding. This approach could be implemented by the Agency setting standards for its own procurement decisions.

Section 508 of the United States Rehabilitation Act 1973, which requires all equipment for the federal government, or purchased with federal funds, to be accessible, would assist with the development of procurement standards.

*Play video of Maurice Corcoran* http://humanrights.gov.au/twentystories/video-access-for-all.html

I played this DVD because it shows the impact that three people can have when they pursue a DDA complaint. Imagine the impact if all people from a particular group who were clients of the NDIS complained together. Most potential respondents would be happy to talk about how barriers could be removed.

I am concerned about the Bill's requirement that, in order to receive NDIS services, people must take action to obtain any compensation to which they may be entitled.  Instead of this unreasonable expectation on people, I would propose use of the well-known insurance law principle of subrogation in the Bill, enabling the Agency to pursue compensation on behalf of the client. This inclusion would ensure that, rather than participants or families deciding whether to risk incurring court costs pursuing an individual compensation claim, the Agency would have the ability to manage risk and make decisions about whether to pursue an individual matter purely on the basis of its merits, and prospects of success.

In addition, allowing the Agency to take appropriate legal action to achieve large scale change - such as Maurice and his colleagues subrogating their right to a DDA complaint - would enable the Agency to advocate on a systemic level. This approach would reduce the cost of delivering individual services, because the environment would be more accessible. More importantly, it would move people with disability closer to substantive equality, as it would provide a fairer and more effective means of achieving large scale change, and resolution of issues either through negotiated settlements or - as a matter of last resort - court action.

Imagine a society where Anj and Michelle did not have to live in facilities with people three times their age. Imagine a society where we could all get on every bus and train.  Imagine a society where people with disability had choice, and control of their own lives, and adequate levels of support.

I am hopeful that the NDIA will put us on a path towards that society.

Thanks for the chance to speak with you today.